I move:
That Dáil Éireann resolves that the terms of reference contained in the resolution passed by Dáil Éireann on 7 October 1997 and by Seanad Éireann on 8 October 1997, as amended by the resolutions passed by Dáil Éireann on 1 July 1998 and by Seanad Éireann on 2 July 1998 and further amended by the resolutions passed by Dáil Éireann and Seanad Éireann on 28 March 2002 and by the resolutions passed by Dáil Éireann on 3 July 2003 and by Seanad Éireann on 4 July 2003 pursuant to the Tribunals of Inquiry (Evidence) Acts 1921 to 2004, be amended by the addition of the following paragraphs after paragraph I:
‘J. (1) The tribunal shall, subject to the exercise of its discretion pursuant to J(6) hereunder, proceed as it sees fit to conclude its inquiries into the matters specified below, and identified in the fourth interim report of this tribunal, and to set out its findings on each of these matters in an interim report or reports or in a final report:
(a) the Carrickmines I Module;
(b) the Fox and Mahony Module;
(c) the St. Gerard’s Bray Module;
(d) the Carrickmines II Module and Related Issues;
(e) the Arlington-Quarryvale I Module;
(f) the Quarryvale II Module;
(g) those modules that are interlinked with the modules set out at paragraphs (a) to (f), and that are referred to in paragraph 3.04 of the fourth interim report of the tribunal.
(2) The tribunal shall, subject to the exercise of its discretion pursuant to paragraph J(6) hereunder, by 1 May 2005 or such earlier date as the tribunal shall decide, consider and decide upon those additional matters, being matters in addition to those set forth at J(1)(a) to (g) above and in respect of which the tribunal has conducted or is in the course of conducting a preliminary investigation as of the date of the decision, that shall proceed to a public hearing and shall record that decision in writing and shall duly notify all parties affected by that decision at such time or times as the tribunal considers appropriate.
(3) The tribunal may in the course of investigating any additional matter under paragraph J(2) or a matter being investigated under paragraph J(1) investigate any other matter of which it becomes aware when it is satisfied that such further investigation is necessary for the tribunal to make findings on any such additional matter or a matter referred to in paragraph J(1) above.
(4) Notwithstanding any other provision of these terms of reference the presentation to the Clerk of the Dáil of an interim report or reports, as the case may be, and of the final report on the matters identified at paragraphs J(1)(a) — (g), J(2) and, where applicable, J(3) shall constitute compliance by the tribunal with all its terms of reference, as hereby amended, and no further investigation or report shall be required of or from the tribunal on any other matter.
(5) Nothing in these amended terms of reference shall preclude the tribunal from conducting hearings or investigations into any compliance or non-compliance by any person with the orders or directions of the tribunal.
(6) The tribunal may in its sole discretion — in respect of any matter within paragraphs J(1), J(2) and J(3) of these amended terms of reference — decide:
(I) to carry out such preliminary investigations in private as it thinks fit using all the powers conferred on it under the Acts, to determine whether sufficient evidence exists in relation to the matter to warrant proceeding to a public hearing if deemed necessary, or
(II) not to initiate a preliminary investigation and-or a public hearing of evidence in relation to the matter notwithstanding that the matter falls within the tribunal's terms of reference, or
(III) having initiated a preliminary investigation in private, and whether same has been concluded, but prior to the commencement of any public hearing of evidence in the matter, to discontinue or otherwise terminate its investigation notwithstanding that the matter falls within the tribunal's terms of reference.
In exercising its discretion pursuant to this paragraph the tribunal may have regard to one or more of the factors referred to below:
(i) the age and-or state of health of one or more persons who are likely to be in a position to provide useful information, including, but not confined to, oral evidence to be given privately or publicly, including the age and-or likely state of health of any such person at such date in the future when that person or persons might be expected to be called upon to give oral evidence or to otherwise co-operate with the tribunal, and in particular the issue as to whether their age and-or state of health is or is likely to be an impediment to such person being in a position to co-operate with the tribunal or to give evidence to the tribunal in private or in public;
(ii) the likely duration of the preliminary investigation or public hearing into any matter;
(iii) the likely cost, or other use of the resources of the tribunal, of such investigation or any stage of the investigation into any matter;
(iv) whether the investigation into the matter is likely to provide evidence to the tribunal which would enable it to make findings of fact and conclusions and-or to make recommendations;
(v) any other factors which in the opinion of the tribunal would, or would be likely to, render an investigation, or the continued investigation into any matter inappropriate, unnecessary, wasteful of resources, unduly costly, unduly prolonged or which would be of limited or no probative value.
(7) subject to paragraph J(3) any matter not brought to the attention of the tribunal or of which it is not aware by 16 December 2004 shall not be the subject of any investigation by the tribunal.'.
The purpose of the amendments is to expedite the work of the tribunal and to enable it to complete its work by 2007. The tribunal was established by the Oireachtas in 1997 to examine certain specific activities and letters that had aroused suspicions of corrupt acts in the planning process. The tribunal was also mandated to investigate any other matters that came to its attention that could amount to corrupt acts in the period since 20 June 1985. The terms of reference were expanded in July 1998 at the request of the tribunal. As a result, the tribunal is mandated to investigate any allegation of corruption associated with the planning process in the Twenty-six Counties.
Notwithstanding the fact that the tribunal was expanded to include three members in 2001, the work of the tribunal, based on its terms of reference, has proved to be unwieldy. As a result, the tribunal, in its fourth interim report, requested a change to its terms of reference to allow it more discretion in the issues that it investigates to shorten the anticipated duration of the tribunal's activities.
The primary intention of the report issued by the tribunal on 15 June 2004 was to give an overview of the work on hand, including all those matters such as the investigation into the land rezoning at Quarryvale and so forth, that have been widely reported in the media. The tribunal also gave a broad overview of the work that remained on hand, for which no public hearings have begun. Although of necessity the tribunal was circumspect in the language it used, the report indicated the tribunal still has a large volume of work on hand which, if its mandate is played out to its fullest extent, would all have to be investigated.
The tribunal, therefore, indicated that the work could carry on until 2014, 2015 or beyond. The tribunal recognised this situation could not be allowed continue. As a result, it requested a change to its terms of reference, which would allow discretion not to pursue lines of inquiry. If the tribunal then decided that the continued pursuit of its inquiries were of limited or no further value in discharging its mandate, it sought the power to report that to the Oireachtas and to convey to the Oireachtas the wish of the tribunal that its investigations and inquiries should terminate on a date to be specified by the tribunal. In other words, it wanted to have more control over its own situation.
Following publication of the report, the Government mandated the Attorney General, who is the appropriate person to carry out such discussions, to consult the tribunal on changes to its terms of reference, as provided for under the 1998 tribunals legislation. The Attorney General was also asked to discuss with the tribunal the impact of the Government's decision in July 2004 to apply a new scale of fees to the legal teams of existing and future tribunals.
There have been three important outcomes from these discussions between the Attorney General and the tribunal, the proposed changes to the terms of reference, the indication by the tribunal that it intends to sit in divisions following completion of the current public hearings and the granting of additional resources and the date of application of the new fees to the legal staff of the tribunal.
I refer to the proposed changes to the terms of reference. The tribunal currently has a mandate to investigate any allegation of an act of corruption associated with the planning process. Under the proposed changes which are the subject of the motion, a new paragraph J will be added to the terms of reference.
Paragraph J(1) enables the tribunal to complete its current investigations into planning issues in Dublin, including the Carrickmines and Quarryvale modules and interlinked matters. Paragraphs J(2) and J(7) provide for the introduction of two important deadlines. Under paragraph J(7), the final date for receipt of any new complaint or request for investigation is fixed by the terms of reference at 16 December 2004, that is, 30 days from today. The tribunal must decide what new matters on its books will proceed to a public hearing by 1 May 2005. After that date, no new investigation can be referred to public hearing by the tribunal.
However, there were concerns that the tribunal could discover something during its investigations that it feels must be investigated to allow it to complete its overall report and an inflexible deadline should not tie its hands in investigating something like that. For that reason, paragraph J(3) provides that, notwithstanding the dates in the terms of reference, the tribunal will be able to investigate something that it discovers during investigations if it is necessary to enable the tribunal to make findings on the matters it has investigated or has decided to investigate.
Paragraph J(4) provides that the presentation to the Clerk of the Dáil of an interim report or final report on the matters investigated under paragraphs J(1), J(2) and J(3) will constitute compliance by the tribunal with all its terms of reference and no further report shall be required of the tribunal on any other matter. Paragraph J(5) enables the tribunal to continue to conduct hearings or investigations into any issue of compliance or non-compliance by any person with the orders or directions of the tribunal.
Paragraph J(6) will enable the tribunal to exercise the discretion it sought in the fourth interim report on the matters that it proceeds to investigate, having regard, in particular, to the age or state of health of people who are likely to be in a position to provide useful information; how long the preliminary investigation or public hearing into any matter is likely to take; the likely cost; whether the investigation into the matter is likely to provide evidence to the tribunal which would enable it to make findings, reach conclusions or make recommendations; and any other factor which would, or would be likely to, render an investigation, or the continued investigation, into any matter inappropriate, unnecessary, wasteful of resources, unduly costly or unduly prolonged or which would be of limited or no probative value. I intend to bring a short Bill before the Oireachtas in the next few weeks to give legal backing to the discretion being granted to the tribunal to decide which issues within its terms of reference to investigate. These changes to the terms of reference set a firm timeframe for the work of the tribunal, which has indicated that the changes will allow it to complete its work by March 2007.
I refer now to the sitting in divisions. The tribunal has confirmed in writing to the Attorney General that it intends to utilise the power to sit in divisions when it is appropriate and practical to do so. This could not happen until after the hearings of the current modules. However, it is anticipated that the tribunal will begin to sit in divisions thereafter. We welcome this because it will allow the tribunal to cover more ground more rapidly.
The final issue is that of additional resources. To help the tribunal meet the new more challenging time frames, the Government has agreed to the allocation of an additional seven people to its legal team. The tribunal has stated that to achieve the level of work required to complete its tasks by March 2007, especially to allow it to sit in divisions, it will need these additional legal staff. The additional cost should be looked at in the context of the shorter time frame for completion of the tribunal's work — less than three years compared to ten years as indicated in the tribunal's fourth interim report.
The tribunal feels it will now be in a position to complete its public hearings by March, 2007. The Government has decided that the new fee scale for lawyers appearing at tribunals, which was approved by the Government in July 2004, will apply to the tribunal from 31 March 2007. This will happen if, therefore, the tribunal does not meet its own deadline.
The changes proposed today will allow the tribunal complete its mandate within a more, timely and certain framework. The changes will allow the tribunal reach findings and make recommendations to help ensure that events similar to the ones it has investigated cannot occur. I commend the motion to the House.
There were some exchanges on this matter on the Order of Business. As Members will know from the briefing I gave to the spokespersons of the groups, the arrangements for amending the terms of reference of the tribunal were specifically set down in an order of this House on establishment. We must respond positively to the tribunal's requests, but we cannot impose changes on it. Therefore, if I appear inflexible in some of my responses, it is because my hands are tightly tied by the decisions made by this House some time ago.
